This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP1669-CR

Cir. Ct. No.2010CF3688

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT I

State of Wisconsin,

Plaintiff-Respondent,

v.

Travis Wesley Stevens,

Defendant-Appellant.

APPEAL
from a judgment and an order of the circuit court for Milwaukee County:david
l. borowski, Judge.Affirmed.

Before Curley, P.J., Fine and Brennan, JJ.

¶1PER CURIAM. Travis Wesley Stevensappeals a judgment convicting him of possession
of a firearm by a felon and an order denying his motion for postconviction
relief.He argues that the circuit court
erred in instructing the jury and that his sentence should be modified.We affirm.

¶2Stevens was charged with one count of possession of cocaine,
one count of possession of marijuana, and one count of possession of a firearm,
all as a party to a crime.After a
trial, the jury found Stevens guilty of possession of a firearm by a felon, but
acquitted him on the two possession charges.Stevens moved for postconviction
relief, challenging a jury instruction and arguing that his sentence should be
modified because his co-defendant, Tamika Toombs, received a sentence that was
more lenient than his sentence.The
circuit court denied the motion.

¶3Stevens first contends that the circuit court coerced the
jury into reaching a verdict, after the jury informed the circuit court that it
was deadlocked, by instructing the jury using a modified version of Wis JI—Criminal 520.The circuit court added the words in italics
to the standard instruction.

I’ve read the most recent note
from the foreperson indicating that you’ve not been making a lot of
progress.Here’s the situation.

I’m going to read you [an] additional, supplemental instruction, but
you need to continue to deliberate.You
need to reach verdicts.

You, the jurors, are as
competent to decide the disputed issues of fact of this case as the next jury
that may or might be called to determine such issues.You are not going to be made to agree nor are
you going to be kept out until you do agree.However, it is your duty to make an honest and sincere attempt to arrive
at verdicts.

Jurors should not be [obstinate].They should be open minded.They should listen to the arguments of others
and talk matters overly freely and fairly, and make an honest effort to come to
conclusions on all the issues presented to you as the jury.

Again, you need to continue to deliberate.I would ask that you, please, retire to the
jury room and continue deliberating.

A little over an hour after
receiving this instruction, the jury returned verdicts of not guilty to
possession of cocaine and possession of marijuana, but guilty to the charge of
possession of a firearm by a felon.The
circuit court polled the jurors individually to confirm that this was their
verdict.

¶4The circuit court has broad discretion in instructing the
jury.State v. Hemphill, 2006
WI App 185, ¶8, 296 Wis. 2d 198, 722 N.W.2d 393.The circuit court must not, however, instruct
the jury in a manner that tends to coerce or threaten them into agreement.State v. Echols, 175 Wis. 2d 653,
666, 499 N.W.2d 631 (1993).When
reviewing an argument that the jury was improperly coerced by an instruction,
“we consider the supplemental charge [that was] given by the [circuit] court
‘in its context and under all circumstances.’”Id. (quotation marks and citation omitted).

¶5The supreme court has held that jury instructions coerce a
verdict in situations where “the jurors faced bodily discomfort and unhealthy
conditions if they failed to reach a verdict quickly.”Id. at 667.As examples of this type of situation, the Echols
court pointed to Brown v. State, 127 Wis. 193, 106
N.W. 536 (1906), where two jurors “were made seriously ill by cigar smoke of
fellow jurors and were informed that they would be locked in the jury room for
the night unless they reached a verdict quickly,” and Mead v. City of Richland Center,
237 Wis. 537, 297 N.W. 419 (1941), where the circuit court informed the jury “that
the majority of jurors were probably correct and that they would be kept in a
cold room all night unless they all agreed to a verdict.”See Echols, 175 Wis. 2d at 667.The Echols court suggested that polling the jurors individually
after the verdict is announced would help to ensure that the verdict was not
coerced because it would allow the jurors an opportunity to express any
reservations with the verdict and “to change their minds about a verdict to
which they ha[d] agreed in the jury room.”Id. at 668-69.

¶6Acknowledging that prior supreme court decisions have held
that Wis JI—Criminal 520 is not
coercive, see Quarles v. State, 70 Wis. 2d 87, 89, 233 N.W.2d 401 (1975), Stevens
contends that the language added to the instruction by the circuit court, when
considered in context, coerced the jury into reaching an agreement.We disagree. The additional language added by the circuit
court told the jury that it needed to continue to deliberate and that it needed
to reach a verdict, but the jury was then informed that it was not going “to be
made to agree or kept out until you do agree.”Read as a whole, the instruction did not force the jury to agree; it told the jury to keep working to see if
agreement was possible.The circuit
court did not impose a time limit for the jury to reach its verdict and did not
threaten the jury with adverse consequences should it fail to reach a verdict.Based on the language of the instruction
considered in context, no reasonable jury would have understood that they had
no choice but to reach a verdict.Moreover,
the circuit court polled the jury after the verdict, giving the jurors an
opportunity to express any reservations that they might have with the verdict
or to change their minds.We therefore conclude
that the circuit court’s instruction to the jury did not improperly coerce the
jury into a verdict.

¶7Stevens
next argues that his sentence should be modified based on a “new
factor,” the disparity between his sentence and the sentence later imposed on Toombs.Toombs
was convicted of two charges, felon in possession of a firearm and keeping a
drug house.The circuit court sentenced
her to four years of imprisonment on each count, with two years of initial
confinement and two years of extended supervision, to be served concurrently to
each other and to her revocation sentence, while Stevens was sentenced to five
years of imprisonment for one conviction, felon in possession of a firearm, with
three years of initial confinement and two years of extended supervision, to be
served consecutively, with eligibility for the Earned Release Program after two
years.

¶8A
new factor is ‘“a fact or set of facts highly relevant to the imposition of
sentence, but not known to the trial judge at the time of original sentencing,
either because it was not then in existence or because ... it was unknowingly
overlooked by all of the parties.’”State
v. Harbor,2011 WI 28, ¶40, 333 Wis. 2d 53, 797 N.W.2d 828 (citation
omitted).The defendant has the burden
of proving by clear and convincing evidence that a new factor exists.Id., ¶36.Whether a fact or set of facts constitutes a
new factor is a question of law that this court decides independently.Id., ¶33.

¶9Stevens
contends that the disparity in sentences is a new factor because it was not
known at the time of sentencing—Toombs was sentenced after him—and was highly
relevant to the imposition of his sentence.This argument fails because Stevens has not shown that the fact that
Toombs’s sentence was less severe is highly relevant to his sentence.To the extent
Stevens is attempting to argue that he should be resentenced based on the
principle that similarly situated defendants should receive similar sentences, Stevens
has not shown that he and Toombs are similarly situated.Stevens contends that Toombs was more
culpable because the gun was found in her house, but that is not enough by
itself to establish that Toombs was more culpable.Stevens also argues that Toombs had a more
aggravated record than his, but provides absolutely no details regarding her
prior record to substantiate this assertion.We therefore reject the argument that Stevens is entitled to sentence
modification based on the disparity in sentences between Stevens and Toombs.